Wilson v. Delaplaine , 3 Del. 499 ( 1842 )

This was an action of assumpsit for money had and received, being for a part of the year's rent of intestate land sold by the Orphans' Court, up to the time of sale, claimed by the administrators of the intestate.

The intestate land of Amor Hollingsworth was sold on the 14th of January, 1841, by an order of the Orphans' Court, made September 8, 1840, and the sale was confirmed on the 15th of February, 1841. The land was in the occupation of a tenant, under a lease ending the 25th of March, 1841, from the administrators, who claimed a portion of the accruing rent up to the day of sale. The purchaser claimed the whole rent. The tenant paid the rent to defendant, who was a stake holder.

Chandler and Rodney, for plaintiff, contended that as rent follows the reversion, and accrues only at the expiration of the term, it was not subject to any apportionment, but belonged entirely to the reversioner. (Gilb. on Rents 59; 20Law Lib. 19; 1 Harr. Rep. 7; 4 LawReporter 389.) That the statutes of apportionment, (Digest 140,) in case of contingent estates, tenants for life and remaindermen, and also in cases of sales by sheriffs, did not extend to this case: that the administrators could have no remedy as they had no right of entry or distress at the time the rent fell due; whereas the purchaser had both.

Gilpin, contra, contended that as the administrators were permitted by law to take possession of the land for certain purposes, their lease was a valid lease, and they had a contingent estate which came within the act of apportionment: that the plaintiff as purchaser of the land took merely the "estate," c., of the intestate "at his death," c.; that is, his interest in the land whether in fee or for less estate; and has no reference to a claim for rents arising under a contract with the administrator; that the purchaser could have no claim against the heir in possession for rents accruing due; and none as against the administrator, who stands in place of the heir; that as the intestate had no interest in these rents, the purchaser who was merely in his place could have none; and that the equity of the case was for an apportionment. By the Court. The rule of the common law that rent follows the reversion is admitted on both sides. But it is contended for the administrators that this rule ought to be, or is, modified by our acts of assembly apportioning rent in certain cases. We are of opinion that those acts do not apply to the present case, and the principle of the common law applies. The rent follows the reversion. The reversion is vested in the purchaser by virtue of the sale and assignment under the Orphans' Court, at the time when the rent falls due. For rent is indivisible. None of it is due until the expiration of the time during which it is accruing. The legislature has changed this in the particular case of a sale by the sheriff by virtue of execution process on judgment or decree, and they have apportioned the rent in that case between the debtor and the purchaser. But the provision extends no further. And in case of a sale of intestate lands under an order of the Orphans' Court, this is but a mode of dividing the land among the heirs of the intestate, and the purchaser takes all the estate of the intestate with its incidents, the accruing rent being one of them.

An administrator has no estate in the land of his intestate, and no right of entry. If he was entitled to any part of the rent as against the purchaser, in case of sale and assignment, it would seem that he should have a right as against the heir in case of acceptance and assignment, which no one would contend.

Verdict for plaintiff.